Matter of Neubauer (Fakiris)

[*1] Matter of Neubauer (Fakiris) 2020 NY Slip Op 51535(U) Decided on December 11, 2020 Surrogate's Court, Queens County Kelly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 11, 2020
Surrogate's Court, Queens County

In the Matter of the Accounting of Donna Neubauer and Donna Fakiris as Executors of the Estate of Pantelis Fakiris a/k/a Peter Fakiris, Deceased.



2013-1946-M



Brian Heitner, Esq.

Seltzer Sussman Heitner LLP

Attorneys for Petitioner, Donna Fakiris

Lara P. Emouna, Esq.

Gleich, Farkas & Emouna LLP

Attorneys for Objectant, Marina Fakiris
Peter J. Kelly, S.

In this proceeding, the decedent's spouse, Donna Fakiris (petitioner), moves for a determination that the validity, construction, and effect of Article Sixth of the decedent's Last Will and Testament results in the entirety of decedent's estate passing to her as the sole residuary beneficiary. If petitioner's analysis is correct, it is her contention that all of the objections to her accounting raised by decedent's daughter, Marina Fakiris (objectant), must be dismissed for lack of standing.

Objectant opposes the motion and cross-moves for a determination that Article Sixth be construed in such a manner that objectant be deemed the sole residuary beneficiary, or, alternatively, that petitioner is the residuary beneficiary solely to the extent of the first $250,000.00 of the residuary estate, with objectant being entitled to the balance.

Article Sixth of the decedent's Last Will and Testament reads as follows:

All the rest, residue and remainder of my estate, both real andpersonal, of whatsoever kind and nature and wheresoever the same may be situated, of which I may die, seized or possessed, or to which I may be entitled at the time of my death, I give, devise and bequeath to my friend, DONNA GERAGHTY, the sum of TWO HUNDRED AND FIFTY THOUSAND ($250,000.00) DOLLARS should she survive me (sic). In the event that DONNA GERAGHTY shall predecease me, then I hereby give, devise and bequeath the aforementioned sum along with the rest, residue and remainder of my estate wherever situated to my daughter, MARINA FAKIRIS, absolutely, per stirpes.

The parties had previously pursued a construction of this troublesome Article in a separate proceeding commenced by the within objectant. By decision dated January [*2]20, 2016, this Court concluded as follows:

[T]he language of this article does present an ambiguity. A reading of the plain words used might support an argument that the decedent intended Donna to receive $250,000.00 and the residuary, while the same went to Marina only in the event that Donna predeceased him, or that he intended Donna receive the first $250,000.00 of his residuary if she survived him, with the balance to Marina. Under either party's construction of Article Sixth, however, it is absolutely clear that Donna is to receive the first $250,000.00 of the residuary estate.

The Court refrained from any further analysis at that time, observing that the value of the residuary estate did not come close to $250,000.00, thereby rendering the task academic. However, it now appears that some of the objections raised to petitioner's accounting, if sustained, could bolster the value of the residuary estate beyond that amount. Whether objectant can continue to pursue her numerous objections however, is contingent on establishing her status as a residuary beneficiary. Thus, the need to construe Article Sixth has ripened.

Before ferreting out decedent's intent, the Court must address the objectant's threshold argument that petitioner is judicially estopped from seeking a construction of the Will inconsistent with determining that objectant is decedent's sole residuary beneficiary.

The doctrine of judicial estoppel precludes a party from adopting a position that is directly contrary to or inconsistent with a position taken in a pleading, deposition, or in testimony before the court (see Moran Enters, Inc v Hurst, 160 AD3d 638 [2d Dept 2018]; McCaffrey v Schaefer, 251 AD2d 300 [2d Dept 1998]). Its application was envisioned, inter alia, to preserve the sanctity of sworn pleadings, ensure the orderly administration of justice, and safeguard the integrity of the judicial process (see e.g. Borges v Placeres, 64 Misc 3d 92 [1st Dept 2019]).

As the Court's ability to get to the truth of the matter before it is essential to the latter objective, judicial estoppel is to be applied in the Court's discretion, and, given its sometimes draconic results, under narrow circumstances (see Matter of Gallagher, 2007 NY Misc Lexis 7639 [Surr. Ct. Kings County Sept. 26, 2007]).

In order for this equitable doctrine to be applied, the objectant must demonstrate (1) that petitioner secured a favorable judgment in a prior proceeding by adopting a certain position and has now taken a contrary position; and (2) the Court premised its judgment on the basis of that position or otherwise adopted or embraced it (see Kimco of NY, Inc. v Devon, 163 AD2d 573 [2d Dept 1990]); McIntosh Builders Inc., v Ball, 264 AD2d 869 [3d Dept 1999]; Gamma Lending Omega LLC v Kaminski, 2020 NY Misc Lexis 4950 [Sup Ct. New York County 2020]).

Objectant argues for its application based upon the fact that the probate petition—also prepared by the drafter of decedent's Will with the same inadequate precision—described objectant's interest in the estate as "distributee, legatee (stock & personal property & residual beneficiary)." Objectant claims that she specifically relied on that information in executing a waiver consenting to the admission of the decedent's Will to probate. As such, it is objectant's position that petitioner is now estopped from claiming otherwise. Objectant's counsel argues:

Had the Probate Petition stated that Donna Fakiris is the residuary beneficiary, Marina would have objected to the Probate Petition and the issues raised by the Objection would have been examined and determined before the Will was admitted to probate, before issuance of the probate decree, and before granting of Letters Testamentary...

Counsel's retrospective assumption is erroneous. At issue in the underlying probate proceeding was the "genuineness of the [decedent's] will and the validity of its execution" (SCPA 1408). The decree issued in the probate proceeding was limited to a determination that the Will itself was valid and the decedent therefore died testate. No determination was made at that time as to the interpretation or effect of any of its provisions. "[U]nless the will is admitted to probate there is no power to construe it. Probate logically precedes construction, for otherwise there is no will to construe" (Matter of Davis, 182 NY 468 [1905]).

Critically, objectant does not claim that she would have objected to the validity of the offered instrument. Absent from her affidavit is any allegation that the decedent lacked the capacity to make a valid will, that the instrument was procured by nefarious means, or that the instrument is otherwise invalid for want of due execution. Her objection concerns the Will's effect, not its genuineness.

Contrary to counsel's claims, an objection of this nature would not have been determined in the context of the probate proceeding. "There is no authority to construe the will for the purpose of defeating probate . . ." (id.). "The meaning of the will, its interpretation and its possible correction can be accomplished only after the will has been admitted to probate." Matter of Devine, 244 NYS2d 934, 940 [Surr. Ct. New York County 1963]). Thus, had the objection been raised at that time as suggested, it would have at most delayed probate unnecessarily.

It follows that the result obtained by the petitioner (namely, the admission of the Will to probate) is not attributable to the descriptions of the interests of the parties contained in the probate petition. Rather, it is a result of the fact that the instrument, while perhaps inartful and imprecisely drawn, was otherwise valid. "If it appears the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property" (SCPA 1409; Matter of Davis, 182 NY 468 [1905]).

Additionally, although the format of the probate petition calls for a description of the parties' interests, this Court neither relied on those descriptions in admitting the Will to probate beyond achieving the necessary jurisdictional predicates, nor rendered a specific finding or adopted a position in this regard.

In fact, the parties have been content to litigate the construction of the Will for several years since its admission to probate. The objectant was presumably aware that the probate decree was not determinative as to the effect of Article Sixth as she filed a separate proceeding for construction of the instrument back in 2014. At that time, no mention was made of judicial estoppel or objectant's purported reliance on the [*3]information contained in the probate petition [FN1] .

In any event, there are no compelling equity or policy considerations that warrant ending an inquiry into the decedent's intent regarding the dispositive provisions of a Will based solely on an imprecise pleading filed by a party in the manner done here. The Court's duty to effectuate the decedent's intent would not be remotely served if the outcome was solely based upon the slipshod linguistics that have plagued this estate. Indeed numerous pleadings verified by objectant over the course of several litigious years also failed to describe objectant's interest as sole residuary beneficiary of decedent's estate.[FN2]

Hence, while the Court does not condone litigants blindly verifying pleadings without regard to accuracy and consequences, the careless pleading practices of the parties and their respective counsel, to the extent performed in this matter, should not dictate an outcome that must be keenly focused on extracting the decedent's intent.

To the extent the information contained in the pleadings constitutes admissions (see e.g., Mich Nat'l Bank-Oakland, 89 NY2d 94 [1996]); Prince, Richardson on Evidence §-219), they do not amount to conclusive evidence of this decedent's intent. If anything, the conflicting and everchanging descriptions of the parties' interests in the pleadings highlight the ambiguity of the poorly worded residuary clause, the resulting confusion among the litigants, and the need for extrinsic evidence to assist in its construction.

Accordingly, the branch of the objectant's cross-motion which seeks to apply judicial estoppel is denied. This threshold argument aside, the Court now turns to petitioner's motion.

The Court's paramount objective in a will construction proceeding is to determine and carry out the testator's intent (see Matter of Fabbri, 2 NY2d 236 [1956]). In cases where the language to be construed is precise enough to convey one meaning, intent is to be determined solely on that basis, and without resort to rules of construction or extrinsic evidence (see id. at 244). To go beyond the language of the instrument in this category of cases would result in an impermissible "refabrication" or rewrite of the decedent's testamentary plan, as opposed to mere interpretation (see id.).

However, as previously determined by this Court (see supra), and contrary to [*4]each party's insistence that the language of the Will militates clearly in their favor, the language employed in this flawed Article does not provide one reasonable meaning and is susceptible of different constructions (id. at 244).

As such, this Court is obliged to "employ whatever means necessary to effectuate the actual intent of the testator" (id.). This includes consideration of extrinsic evidence to ascertain the decedent's true intent (see Matter of McCabe, 269 AD2d 727 [3d Dept 2000]); Matter of Phillips, 101 AD3d 1706 [4th Dept 2012]). Such evidence may include the testimony of the attorney-draftsperson (see Matter of Stiefel, 24 AD3d 994 [3d Dept 2005]; Matter of Ossip, 1991 NYLJ Lexis [Surr Ct. Westchester County 1991]; CPLR 4503[b]). The facts and circumstances surrounding the making of the Will may also be considered (see Matter of Furry, 196 Misc 763 [Surr. Ct. Broome County 1949]).

In support of the motion, petitioner submits inter alia an affidavit from attorney draftsperson George E. Magriples (Magriples), an estate planning intake form, a prior draft of the Will, and an email with running handwritten notes reflecting subsequent communications from the decedent to Magriples.

According to Magriples, he met and conferred with the decedent on three occasions and spoke with him on more than one occasion by telephone concerning his estate plans. Throughout that time, Magriples swears that the decedent consistently communicated his desire that his entire residuary estate be left to the petitioner.

In further support of his assertions, paragraph 51 of the estate intake form entitled "Residuary Estate-contingencies over" includes Magriples' handwritten notation "Residual Donna." There is no further information in that paragraph other than a question mark and the notation "after lunch."

Magriples goes on to state that the testator initially directed that in the event petitioner predeceased him, the residuary estate would go to both of his children, the within objectant and her brother Kostas. Magriples references and includes a draft of the Will he prepared reflecting the decedent's preliminary directives. Article Sixth of that draft reads as follows:

All the rest, residue and remainder of my estate, both real and personal of whatsoever kind and nature and wheresoever the same may be situated, of which I may die, seized or possessed, or to which I may be entitled at the time of my death, give, devise and bequeath to my friend, DONNA GERAGHTY should she survive me. In the event that DONNA GERAGHTY shall predecease me, then I hereby give, devise and bequeath the rest, residue and remainder of my estate wherever situated to my son, KOSTAS FAKIRIS and my daughter, MARINA FAKIRIS, in equal shares, absolutely, per stirpes.

There is no ambiguity in this version of Article Sixth. It clearly provides for the decedent's entire residuary estate to pass to the petitioner provided she survived the testator. The decedent's children would only have taken part in the residuary in the event that petitioner predeceased the testator. Unfortunately, this pellucid version

of Article Sixth did not remain undisturbed.

According to Magriples, on the day of the instrument's execution, decedent expressed his concern that petitioner receive a pre-residuary bequest in the sum of

$250,000.00 so as to be assured that petitioner "would have sufficient cash [FN3] " to maintain the residence he was devising to her under his Will. Magriples states: "It was never intended that Donna receive $250,000 in lieu of the residuary estate; rather that Donna was to receive $250,000 and the residuary estate."

Magriples instructed his secretary to "quickly make changes" to incorporate the bequest and returned to decedent's office to execute the Will. He states the following concerning the emergence of this problematic and costly article:

Now, after reviewing the language of the Will, I am embarrassed by the fact that the drafting of Article Sixth, the residuary clause, reflects [decedent's] clear intent in an unclear manner. In hind-sight, I should have provided for a separate specific bequest to Donna earlier in the Will. Moreover, in my haste, it also appears that I omitted the simple word "and" between the words "GERAGHTY" and "the" in the fourth line of Article Sixth.

Magriples maintains that notwithstanding his admittedly "poor, in-artful and hasty drafting" the continuing language of the Article still makes it clear that under any circumstances, objectant was only to receive the residuary estate in the event that the petitioner predeceased the decedent.

Also submitted by the petitioner is a copy of an email which includes Magriples "running handwritten notes" pertaining to the file. At the bottom of the page, in an enumerated list is the notation "4) resid. to Donna + 250" and "5) ALT KOSTA MARINA."

Turning now to the cross-motion, in addition to the argument for judicial estoppel, rejected supra, objectant cites numerous alleged breaches of fiduciary duties, bad-faith, self-dealing, and conflicts of interests on the part of the executors in the administration of the estate, and claims, among other things, that petitioner's "rapid marriage to the terminally ill Decedent and the raiding of the Decedent's assets...was directly in conflict with the Decedent's plan of distribution set forth in the Will."

These allegations, even if proved to be true, have no bearing on the decedent's intent with respect to Article Sixth of the Will, and do not provide this Court with evidence that would assist in its interpretation. Purported inconsistencies in Magriples' testimony concerning his preparation of the probate petition and Magriples' level of expertise, are similarly inconsequential to an analysis of decedent's intent.

Objectant also posits that a sympathetic reading of the provisions of the Will, coupled with the totality of the circumstances, militates in favor of objectant being the residuary beneficiary. The resulting analysis however, consists of conflicting and ultimately, unsupported theories, one of which suggests that decedent wanted to primarily benefit his children, another of which suggests that decedent wished to treat [*5]the children and the petitioner equally, and both of which objectant claims result in her being deemed the residuary beneficiary.

Still another theory grounds objectant's entitlement to the residuary on the basis of "Greek tradition." The objectant does not embellish upon this tradition or provide any evidence that decedent had such tradition in mind when considering the provisions of his Will, much less Article Sixth.

Objectant further speculates that had decedent truly intended to leave the residuary estate to the petitioner, there would be no need to provide petitioner with a specific devise of real property and an additional $250,000.00 as "all of those assets would have been consumed in the residuary estate." This rationale does not take into account Article Eleventh of the Will which provides that taxes are to be paid from the residuary estate. Nor does it consider principles of abatement.

Nevertheless, objectant insists that her "rational reading" of the Will is more plausible than the extrinsic evidence of decedent's intent provided by Magriples, all of which in objectant's estimation, should be excluded on the basis of the witness-advocate rule and/or CPLR 4519, or otherwise viewed as unreliable.

As previously set forth in this Court's decision of February 4, 2020, rendered in response to objectant's motion in limine, the request to preclude Magriples' testimony on the basis of the witness-advocate rule is denied

Also rejected is the objectant's claim that Magriples' testimony violates CPLR 4519, the so-called Dead Person's statute. This statute prevents witnesses with a direct interest in the outcome of the litigation from testifying to transactions with the decedent. Plainly, the individuals with a direct stake in the outcome of this dispute, are the petitioner and the objectant.

Objectant wishes to extend CPLR 4519 to prevent Magriples from testifying, arguing that he too would be acting in his own self-interest by testifying in favor of the position taken by the petitioner based upon the "expectation that his significant legal fees be approved and paid from the estate" and that his testimony would "absolve him from potential liability" (emphasis added). The Court cannot agree. Magriples' testimony, the sum and substance of which is the admission of an extremely costly and embarrassing drafting error, arguably serves neither of those alleged self-interests.

In any event, courts have long erred on the side of liberality with respect to witness competency and have consistently held that indirect interests of this nature—characterized by expectancy and possibility—are not sufficient to warrant an outright barr of the testimony (see e.g., Laka v Krystek, 261 NY 126 [1933]; Matter of McCulloch's Will, 263 NY 408 [1934]; Matter of Lewis, 279 AD 254 [1952]). Therefore, the objectant's request to exclude Magriples' testimony on this basis is denied.

Also denied is the request to disregard Magriples' affidavit on the basis that such testimony is regarded by the courts as "unreliable and of little benefit." The cases cited by objectant in support of this proposition are inapplicable to the facts presented herein, as those decisions concern instances where resort to extrinsic evidence was neither necessary nor permissible because intent was ascertainable from the clear language of the instrument itself (see Matter of Campbell, 171 Misc 2d 892 [Surr Ct. Erie County 1997]; Matter of Salterini, 7 Misc 2d 497 [Surr Ct. NY County 1957]; Matter of Wickwire, 270 AD2d 659 [3d Dept 2000]; Matter of Storrs, 18 Misc 2d 941 [Surr Ct. [*6]NY County 1959]).

In addition to the draftsperson's testimony, the objectant would also have the Court disregard the intake form, attorney notes, and prior draft of the Will in conducting its analysis, solely on the basis that they were not prepared on the very day that the subject instrument was executed, and therefore do not speak to the decedent's intent at the precise moment he executed his Will.

Indeed if such an exacting and counterintuitive standard was applied to define the permissible extrinsic evidence that the Court could consider, the Court would circuitously find itself back at the beginning of the analysis, confined to resolving the ambiguities solely on the basis of the very instrument it is seeking to construe.

The Court is not persuaded that the evidence provided by the petitioner is to be so casually disregarded. In fact, the testimony of the draftsperson, intake notes, and prior drafts, are precisely that which is contemplated to be received in proceedings of this nature when ambiguities abound (see CPLR 4503[b]).Further, ambiguities are to be resolved based upon "a balance of evidence or probabilities in favor of one side or the other of the dispute" (id.; see also Matter of Goodyear, 2017 NYLJ Lexis 3686 [Surr. Ct. Erie County 2018]; Matter of Milliette, 123 Misc 745 [Surr. Ct. Clinton County 1924]). While "it is not to be expected that absolute certainty can always be obtained" (Weeks v Corwell, 104 NY 325 [1887]) the balance of the extrinsic evidence herein weighs entirely in petitioner's favor.

By virtue of the testimony of the draftsperson, the intake sheet, the prior draft of the Will, and the draftsperson's notes, petitioner has submitted prima facie evidence that decedent intended for petitioner to be the recipient of his entire residuary estate and that objectant was only to receive the residuary estate in the event that petitioner predeceased the testator.

In contrast, the cross-movant failed to demonstrate prima facie the application of judicial estoppel to the facts presented. The remaining balance of the cross-movant's argument was based entirely upon conjecture. Beyond self-serving statements and theory, the objectant did not proffer any independent evidence to support her proposed construction of the instrument.

By extension, objectant's opposition to petitioner's motion is insufficient to create a material issue of fact warranting a trial. In the absence of any direct independent evidence concerning decedent's intent, mere speculation coupled with the hopes of discrediting Magriples' testimony at trial is insufficient to defeat summary judgment (see e.g., Angeles v Goldhirsch, 268 AD2d 217 [1st Dept 2000]; Harris v Pitts, 109 AD3d 790 [2d Dept 2013]).

Accordingly, the branch of the petitioner's motion for summary judgment

which seeks a determination that the validity, construction, and effect of Article Sixth of the decedent's Last Will and Testament results in the entirety of decedent's residuary estate passing to her as the sole residuary beneficiary is granted. The objectant's cross-motion which seeks a construction of Article Sixth determining that she is the residuary beneficiary of the decedent's estate is denied.

Having failed to establish the objectant's status as the residuary beneficiary of the estate, the Court turns to the branch of petitioner's motion which seeks to dismiss the entirety of the objections filed for want of standing.

Courts will not permit objections to be filed where the objecting party will not be benefitted by them, even if sustained (see Matter of Freeman, 198 AD2d 897 [4th Dept 1993]; Matter of Woods, 36 AD2d 880 [3d Dept 1971]). Accordingly, claims grounded upon estate mismanagement, excessive legal fees, funeral and travel expenses, unwarranted or miscalculated commissions, and failure to marshal assets that would ultimately fall into the residue are not maintainable by the objectant. As the sole residuary beneficiary, the only party with a pecuniary interest in the outcome of those objections is the petitioner.

Nevertheless, objectant argues that even if she is not the residuary beneficiary, there are still objections that remain that must be resolved by the Court. First, objectant seeks an additional $30,000.00 of interest she claims she is entitled to based on the co-executors' breach of fiduciary duty. This alleged breach stems from an earlier proceeding brought by the objectant against the petitioner seeking to compel payment of her $500,000.00 legacy and the imposition of surcharges.

However, that proceeding was resolved by a stipulation entered into between the parties on March 26, 2018. The stipulation provided for the immediate payment of the $500,000.00 legacy and the payment of an additional $60,000.00 in interest to objectant. A decree was issued by this Court dated March 28, 2018, granting the objectant's petition to the extent of the agreed upon terms (File No: 2013-1946/K).Objectant now seeks an additional $30,000.00 of interest related to this same transaction. Despite being represented by her own counsel in that proceeding, she contends that the fiduciaries she was seeking to surcharge were obliged to advise the Court that she was entitled to more than the bargained for $60,000.00 of interest. The Court finds this argument to be entirely without merit.

Finally, the objectant insists that this Court must address the objections pertaining to the fiduciaries' administration (or lack thereof) of the decedent's real property located in Greece which was devised to the objectant in Article Eighth of the Will.

EPTL §3-5.1[b][1] provides that the formal and intrinsic validity, effect and manner in which real property devolves is "determined by the law of the jurisdiction in which the land is situated" (see Estate of Bernstein, 1995 NYLJ Lexis 7985 [Surr. Ct. Kings County 1995]). Thus, the obligations of the fiduciaries with respect to the Greek property should be adjudicated by the appropriate tribunal in that jurisdiction as "[t]his court cannot assume jurisdiction over property which it cannot effectively control... "It cannot determine rights or interests in property which the place of the situs will not and need not recognize" (see Matter of Strauss, 75 Misc 2d 454 [Surr Ct. New York County 1973]). Accordingly, the objections relating to the decedent's Greek property are dismissed without prejudice.

The balance of the motion and cross motion are denied.

Based upon the foregoing, the branch of the motion which seeks to dismiss the objections in their entirety is granted. The objections to petitioner's accounting are dismissed.

Settle decree.

Dated: December 11, 2020

______________________

SURROGATE Footnotes

Footnote 1:Objectant did not seek the application of judicial estoppel in her prior motion for summary judgment. Therein, passing reference was made to the "admissions" in the probate petition but there was no claim that objectant relied upon the information in the probate petition in executing a waiver and consent. These allegations only emerged recently with a change of objectant's counsel.

Footnote 2:In objectant's proceeding for Relief Against a fiduciary she describes herself only as a beneficiary of the sum of $500,000.00 (File No: 2013-1946/B); in her initial construction proceeding she describes herself as a distributee and legatee (File No: 2013-1946/C); in her removal proceeding she again describes herself as a distributee and legatee (File No: 2013-1946/D/E/F); and in her compulsory accounting proceeding (File No: 2013-1946/H/I/J) she describes herself only as a distributee.

Footnote 3:Article Eleventh of the Will directs that "any and all transfer, estate, inheritance and succession taxes, whether State or Federal, or both, which may accrue and become payable by reason of my death, whether or not the property, right or interest by reason of which such tax accrues or is payable passes under this Will, shall be paid as expenses of administrator and administration out of my residuary estate as my residuary estate is defined in Article SIXTH of this Will..."